Commentary

Lawyers Grapple with Social Media "e-Discovery"

The complexities of discovery, the process whereby lawyers winkle out evidence pertinent from the opposing side, are the subject of law school courses and legal journals. And discovery is getting even more complicated with the rise of social media, which presents new challenges for lawyers across many different types of legal dispute.

One of the biggest challenges, according to the “2011 Mid-Year e-Discovery Update” from law firm Gibson Dunn, is the issue of authentication -- that is, making sure that evidence extracted from social media is real, and also hasn’t been tampered with (knowingly or unknowingly) by changes made since the timeframe relevant to the court case.  

In recent court cases, judges have held that evidence gleaned from social media profiles isn’t “self-authenticating,” meaning it can’t simply be taken at face value; indeed, “some courts suggested that a greater authentication showing may be necessary social media because this data may be easily manipulated.”

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Here Gibson Dunn pointed to one recent case from Maryland where a murder conviction was overturned because the “State failed to supply the additional extrinsic evidence necessary to properly attribute MySpace profile and postings to the alleged author; simply confirming that the profile photo, nickname and birthday were the author's was insufficient because ‘anyone can create a fictitious account and masquerade under another person's name or can gain access to another's account by obtaining the user's username and password.’”

In this case the court suggested several possible methods for authenticating social media evidence, including asking the alleged owner of the account about the profile or posting under oath, searching the alleged owner’s hard drive and Internet history to determine whether that computer was used to originate the profile or post, and obtaining “information directly from the social networking website that links the establishment of the profile to the person who allegedly created it, and also links the posting to the person who initiated it.”

On the crucial subject of privacy, however, Gibson Dunn noted that the general trend in is against any presumption of privacy, as “Courts continued to find that individuals generally do not have a reasonable expectation of privacy, regardless of activated privacy settings, in the information they submit to social networking sites.” This means that courts can order social media users to “provide all passwords, user names and log-in names for any and all MySpace and Facebook accounts” and “refrain from deleting or altering existing posts.”

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